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A Popular Constitutional History of the Angelo Herndon Case Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1992 Rouge et Noir Reread: A Popular Constitutional History of the Angelo Herndon Case Kendall Thomas Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, First Amendment Commons, Law and Race Commons, and the Legal History Commons Recommended Citation Kendall Thomas, Rouge et Noir Reread: A Popular Constitutional History of the Angelo Herndon Case, 65 S. CAL. L. REV. 2599 (1992). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2177 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. ROUGE ET NOIR REREAD: A POPULAR CONSTITUTIONAL HISTORY OF THE ANGELO HERNDON CASE KENDALL THOMAS* I. INTRODUCTION If the ruling and the oppressed elements in a population, if those who wish to maintain the status quo and those concerned to make changes, had, when they became articulate, the same philosophy, one might well be skeptical of its intellectual integrity. John Dewey' In 1932, Eugene Angelo Braxton Hemdon, a young Afro-Ameri- can 2 member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state's * Professor of Law, Columbia University. B.A. 1978, Yale University; J.D. 1983, Yale Law School. I would like to thank the many readers of early drafts of this Article for their helpful comments, as well as Worigia Bowman, Blondel Pinnock, and Mano Raju for their research assist- ance. I owe a special debt of gratitude to the participants in the first Workshop on Critical Race Theory, held in 1989 at the University of Wisconsin (Madison), and to Katherine Harrison, who remembered for me. Work on this Article was supported by the Class of 1932 Law Research/ Writing Fund and by Columbia Law School alumni. 1. JOHN DEWEY,PHILOSOPHY AND CIVILIZATION 9 (2d ed. 1968). The book was originally published in 1931. 2. This Article uses the terms "Afro-American," "African-American," and "black Ameri- can" interchangeably. In recent years, the question of racial designation in law review articles has come to require a footnote (usually at the beginning of a piece) explaining the author's particular usage. See, ag., Kimberl6 Williams Crenshaw, Race, Reform and Retrenchment, 101 HARV. L. REV. 1331, 1332 n.2 (1988) (using "African-American" and "Black" and explaining the capitaliza- tion of the latter term on the ground that "Blacks... constitute a specific cultural group and, as such, require denotation as a proper noun"); Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. RE. 1745, 1745 n.2 (1989) (employing the term "white" in conformity with "implicit understandings of racial identity" in the United States, and using a panoply of other terms-some racial, some ethnic, some cultural-to designate "non-whites"); and Patricia J. Wil- liams, Alchemical Notes: Reconstructing Ideals from DeconstructedRights, 22 HARV. C.R.-C.L. L. RE'.401, 404 n.4 (1987). For representative press accounts and opinions on one recent chapter in the long history of American debate regarding the practice of racial naming, see Jesse Jackson, Negro, Black and African-American, N.Y. TIMES, Dec. 22, 1988, at A22; Flora Lewis, Jackson as 2599 2600 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 65:2599 lawful authority. Some five years later, in Herndon v. Lowry,3 Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been con- victed. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his rights to freedom of speech and assembly and because the statute failed to furnish 4 a reasonably ascertainable standard of guilt. African-American, N.Y. TIMEs, Jan. 11, 1989, at A23; Isabel Wilkerson, "African-American'Favored by Many of America's Blacks, N.Y. TIMES, Jan. 31, 1989, at Al. The cluster of issues joined in this debate are both difficult and delicate. To take them up fully here would be impossible. I do, however, want to comment briefly on the particularly puzzling argument developed in Flora Lewis' article, primarily because it is an exemplary instance of the muddled thinking that abounds in public debate about the ideology of race in contemporary America. Lewis uses the word "disturbing" to criticize Jesse Jackson's attempt to call American blacks African-Americans because, she says, the term "seems to emphasize separateness and divi- sion, just the opposite of the goal of integrating society and reducing the importance of ethnic and racial origin." Id. In a curious example, she compares Jackson's proposal with practices in the Soviet Union, where "a distinction is made between citizenship (Soviet) and nationality, which may be Russian, Ukrainian, Jewish [sic], Armenian or Uzbek, for instance." Id. (emphasis added). As Lewis sees it, the Soviet practice "could bring [the nation's] undoing." Id. Nowhere in her piece does Lewis take issue with the long-standing and perfectly uncontroversial convention of identifying individuals as, for instance, Italian-American, Jewish-American, Cuban-American, Irish-American, Mexican-American, Greek-American, Anglo-American, and so forth. Similarly, she simply notes without comment the fact (which Jackson remarked on) that during recent presidential campaigns, "TV profiles.., traced... [the candidates] back to the village of their forebears-Ronald Reagan's in Ireland, George Bush's in England, Michael Dukakis's in Greece." Id. One may fairly infer from her silence that Lewis does not view these practices as impeding "the goal of integrating society and reducing the importance of ethnic and racial origin." In the face of these examples, we might expect Lewis to explain the difference (if any) between these instances of racial, ethnic, and cultural naming and the Jackson proposal. But at no point in her piece does Lewis say specifically why the recom- mendation by a "black" American (a linguistic sign-like "white"-in search of an empirical refer- ent) that Americans of African descent start to identify themselves in terms of ancestral culture instead of "color" should be viewed as a threat to our national existence rather than a testament to our national diversity. What precisely is it about the name "African-American" that makes it such a dangerous sign of "division" and "separateness"? One might well wonder whether something more (or other) is at stake here than the simple question of the name. I suspect that the real roots of Lewis' opposition to Jackson's appellative proposal lie less in its connotative than in its performative implications. See J.L. AUSTIN, How TO Do THINGS WITH WORDS (2d ed. 1975). Might it be that what Lewis finds "[p]ersonally... disturbing" is not the question of the name as such but rather the assertion by African-Americans of an inalienable, indivisible right to take this (or any) name to, for, and by themselves? This Article may be read as an extended meditation on what I believe is the real issue at stake in the racial nomenclature debate: namely, the relationship, in the terms of my analysis here, between linguistic and political self-determination. 3. 301 U.S. 242 (1937). 4. Id. at 259-62. 1992] HISTORY OF THE ANGELO HERNDON CASE 2601 Herndon v. Lowry is generally acknowledged as one of the great civil liberties decisions of the 1930s, one of the notable "success stories"' of the Supreme Court's First Amendment jurisprudence. It marked the first time the Supreme Court had mentioned the Holmes-Brandeis "clear and present danger" formula in the ten years since its decision in Whitney v. California.6 It was also the first case in which the Supreme Court used the test to uphold the civil liberties claims of an individual against censorial state action,7 the first time the Supreme Court reviewed a sedition conviction from the South, and the first political-crimes con- viction reviewed by the Court that involved an African-American defendant.' One of the first critical commentaries on the case appeared in the 1941 edition of Free Speech in the United States, Zechariah Chafee, Jr.'s classic study of First Amendment case law.9 In an essay entitled Rouge et Noir, Professor Chafee noted that in Herndon v. Lowry "the Supreme Court was faced for the first time with the possibility that American citi- zens might be hanged or electrocuted for nothing except expressing objectionable opinions or owning objectionable books."1 Chafee approached the arrest, trial, and conviction of Angelo Herndon as a case study in American political justice. Herndon's real crime, argued Chafee, was that he sought "to put the Fifteenth Amendment into wider effect."'" Those in power in Georgia, Chafee ironically observed, were "afraid, not that the United States Constitution would be overthrown, but that it might be enforced." 2 5. The phrase is Vincent Blasi's. See Vincent Blasi, The PathologicalPerspective and the First Amendment, 85 COLuM. L. REv. 449, 509 (1985). 6. 274 U.S. 357, 374 (1957). See MARTIN SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW 58 (1966). 7. PAUL L. MURPHY, THE CONSTITUTION IN CRISIS TIMES, 1918-1969, at 181-82 (1972). 8. The second Afro-American defendant to appeal a political-crimes conviction to the Supreme Court was Benjamin Davis. Davis, who represented Angelo Herndon during the initial stages of the case, secretly joined the Communist Party while acting as defense counsel for Herndon.
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